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District Court 28 August 2009

R v James Duncan SMITH

[2009] NSWDC 414

Sexual offences
CRIMINAL LAW SENTENCE CONVICTED BY JURY TRIAL INDECENT ASSAULT INDECENT ASSAULT ON PERSON UNDER 10 SEXUAL INTERCOURSE WITH CHILD UNDER 10

Citation: R v James Duncan SMITH [2009] NSWDC 414
Court: District Court of New South Wales
Date: 28 August 2009
Judge(s): Cogswell SC DCJ

Background

The offender was convicted by jury of nine sexual offences committed against a young girl over a period spanning approximately 2001 to 2005. The offender was a family friend of the victim's father, and the offences occurred during overnight visits to the offender's home at St Clair.

The offences took place on three separate occasions. On each occasion, the victim was asleep in the offender's lounge room alongside other children. The offender woke the victim during the night and committed the offences while other children and adults remained nearby. The agreed facts confirmed that the offender touched the victim in a sexual manner whenever she stayed at his house.

The offences ranged in seriousness from indecent assault to sexual intercourse with a child under ten, and later to aggravated sexual intercourse without consent when the victim was under sixteen. Several of the later offences were committed while the offender was on bail.

  • What sentences were appropriate for each of the nine offences, having regard to the maximum penalties and standard non-parole periods prescribed by Parliament?
  • Whether the standard non-parole periods applied to the relevant offences and whether there were reasons to depart from them.
  • Whether the offender's conduct in encouraging the victim's father to leave on one occasion constituted an aggravating feature.
  • How the sentences should be structured (concurrently or cumulatively) to reflect the overall criminality without resulting in a crushing total sentence.

Decision

The court found that the offences, while largely opportunistic and involving a limited degree of planning, were serious and occurred in a context of significant breach of trust. The offender was a family friend entrusted with the care of the victim during overnight stays, and he exploited that position on multiple occasions. The fact that the offending was a repeated pattern, rather than isolated incidents, was taken into account in sentencing.

Standard non-parole periods applied to the most serious offences: the aggravated sexual intercourse without consent charge (standard non-parole period of ten years) and the two indecent assaults in circumstances of aggravation (standard non-parole period of five years each). The court found no reason to depart from those standard non-parole periods on the facts.

For the January 2005 offences, the court found that the offender had positively encouraged the victim's father and his companion to leave the house, thereby creating the opportunity to offend. This was treated as an aggravating feature of those offences.

The sentences were structured with a combination of concurrent and cumulative terms to achieve a result that was proportionate to the totality of the offending. The court noted that the offender was likely to serve his sentence in protective custody, a matter relevant to the conditions of imprisonment he would face.

Orders Made

  • Total sentence of 14 years and 7 months imprisonment, commencing 31 August 2007 and expiring 30 March 2022.
  • Non-parole period of 11 years and 7 months, commencing 31 August 2007 and expiring 30 March 2019, at which point the offender became eligible for parole.
  • Standard non-parole periods applied to counts 7, 8, and 9 (aggravated sexual intercourse without consent, and two indecent assaults in circumstances of aggravation).
  • The court recommended the Parole Authority consider the desirability of community-based maintenance programs upon any release on parole.

Key Takeaways

  • The District Court applied standard non-parole periods under the Crimes (Sentencing Procedure) Act 1999 to the most serious offences and found no grounds to depart from them on the facts presented.
  • Where an offender in a position of trust actively creates the opportunity to offend, that conduct can constitute an aggravating feature even if the overall pattern of offending is characterised as opportunistic.
  • Repeated sexual offending against the same victim across multiple occasions is not treated as isolated conduct; the court took the pattern of behaviour into account in assessing the overall criminality.
  • Likely service of a sentence in protective custody is a relevant consideration at sentencing, as it bears on the conditions the offender will actually experience during imprisonment.
  • In structuring a sentence involving multiple offences across separate occasions, the totality principle requires the court to ensure the aggregate term is not disproportionate to the overall conduct, achieved here through a combination of concurrent and cumulative sentences.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61J(1), 61M(1), 61M(2), 66A(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 54B

Cases:
- Fisher (1989) 40 A Crim R 442